Argument recap: “Common sense” and violence (UPDATED)

Posted Tue, November 2nd, 2010 12:44 pm by Lyle Denniston

Commentary

With Justice Stephen G. Breyer pushing the notion that “common sense” can work as a constitutional principle, the Supreme Court on Tuesday looked for a workable way for states to keep younger kids away from truly violent video games, even while seemingly convinced that California has not found that way. The oral argument swung between deep skepticism about state legislators’ ability to define “violence” without suppressing too much free expression, and an abiding feeling — a “common sense” perception — that there is a social problem with children committing digital murder or maiming on their computer screens.

If there was one strategic error by counsel in Schwarzenegger v. Entertainment Merchants Association (08-1448), it was by the video game industry’s lawyer, contending under questioning that there simply is no problem that legislatures need to try to solve nor is there any way constitutionally that they could craft a solution if they tried. By the time Paul M. Smith offered those thoughts, the Justices appeared well on their way to believing just the opposite.

Even so, Smith’s core argument — that California’s ban on the sale or rental of violent video games to minors violated the First Amendment — looked like a sound one, even if it might work only for this one law. As a result, California’s lawyer, Deputy State Attorney General Zackery P. Morazzini, found himself up against a wall of First Amendment passion against the specific statute he was sent to defend.

The Court had stepped into the controversy over the California statute when there was no dispute among lower courts: they had struck down all such statutes tested before them. In Morazzini’s part of the argument on Wednesday, it was not apparent why the Justices had taken on the case, since there was only one member of the Court — Justice Breyer — who showed an inclination to uphold the law. Most of the other Justices treated the California measure as much too broad and thus, if upheld, serving as an invitation to go after violence in movies and cartoons, books and comic books, and virtually every other medium of expression.

Justice Ruth Bader Ginsburg, for example, told Morazzini: “If you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s Fairy Tales. Why are video games special?”

To the California lawyer’s argument that some items would not be covered because their content does not “depart from the established norms,” Justice Antonin Scalia shot back: “That same argument have been made when movies first came out. They could have said, ‘Oh, we’ve had violence in Grimm’s Fairy Tales, but we’ve never had it live on the screen. I mean, every time there’s a new technology, you can make that argument.”

And the state’s lawyer came under withering questioning about the young people it intended to protect. Justice Samuel A. Alito, Jr., for example, asked: “What age group are you talking about? If a video manufacturer has to decide under your statute where its game stands, what age of a child should the manufacturer have in mind? A 17-year-old? A 10-year-old?” Soon, Justice Ginsburg chimed in: “California doesn’t make any distinctions between 17-year-olds and 4-year olds.” Morazzini said it would be up to a jury to decide who the protected age group should be, but that response got him no traction.

Justice Breyer tried to come to the state’s rescue, suggesting that it perhaps should consider an approach that barred the sale to a 12-year-old of “something that would be horrible for an 18-year-old.” If a video game had “no redeeming importance of any kind” for an 18-year-old, Breyer suggested, it might make a games ban “okay.”

Morazzini’s lowest moment, though, appeared to come with a comment by Justice Anthony M. Kennedy, whose votes the state almost surely would need to win the case. The state had argued, Kennedy noted, that the constitutional standards for obscenity could simply be applied to expressions of violence. The problem, the Justice went on, is that “for generations there has been a societal consensus about sexual material…But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions. And this indicates to me the statute might be vague, and I just thought you would like to know that reaction.”

When Smith rose to make his attack on the California law, he clearly had a sympathetic Court awaiting his argument. Aside from Justice Breyer, he seemed to have no one to worry about. Smith, in fact, soon encountered Breyer’s sympathy for some form of regulating children’s access to violent videos, as the Justice pressed the idea that “common sense” would support the need for that, even if scientific studies differed on whether such exposure was harmful.

From there, Smith was moving along well with his argument, buttressed by helpful comments and questions by Justice Scalia. His trouble, however, began when he argued that, throughout the country’s history, “violence has been a feature of works that we create for children.” Chief Justice John G. Roberts, Jr., was the first to react strongly. “We do not have a tradition in this country,” the Chief Justice said, “of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down….Pour gasoline over them, set them on fire and urinate on them…We protect children from that. We don’t actively expose them to that.”

When Smith replied that parents have been doing the job of insulating their children from that kind of imagery so the Court should not create a new exception to the First Amendment for depictions of violence, the Chief Justice responded by pressing the lawyer to say whether the First Amendment would protect the sale of a video of the kind he had just vividly described. After having to put the question a couple of more times, Roberts got his answer, as Smith appeared to say that a legislature could not pass such a ban, because there was “no possible way….to use the English language to draw an exception to the Constitution.”

With that response, other Justices began testing just how far Smith would go. Justice Elena Kagan, for example, asked whether there is “any showing that the states could make that would satisfy you?” The lawyer did not answer explicitly. Justice Alito commented that “it’s one thing to read a description of one of these video games” but seeing it graphically portrayed is another, and then doing it :is still a third thing.”

The Chief Justice finally got Smith to concede that perhaps a law narrower than California’s could be an alternative, but Smith added that “the key thing is you strike down this law.” But, backtracking, the lawyer again said that the English language could not be used to fashion a law that “gets to what they claim” is the problem with video games. He soon was telling Justice Breyer that “they have not shown any problem.”

And, under close questioning by Justice Alito, Smith again argued that “the problem is already well controlled,” by parents. “Just to be clear,” the Chief Justice then asked, “your answer…is at this point there is nothing the state can do.” After pressing further for a “clear answer,” Smith said “The answer is yes, Your Honor.” That prompted Justice Sonia Sotomayor to say with some exasperation: “How can you say that?…There is still proof out there and an abundance of it that kids are buying the games.” Justice Breyer wanted Smith to make the point again, and got the lawyer to say that there is nothing the states can do.

It was Smith’s low point, but he made it without a hint of regret. It was apparently basic to his whole argument, but it appeared to have left an unsatisfied Court.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.